Virtual Child Pornography: Does it Mean the End of the Child Pornography Exception to the First Amendment?
62 Pages Posted: 23 Apr 2008
From its inception, child pornography law has attempted to reconcile two powerful interests: the First Amendment and the prevention of sexual exploitation of children. Recently, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court struck down provisions of the Child Pornography Prevention Act of 1996 that proscribed "virtual" child pornography. This Article attempts to demonstrate that Congress's legislative response to the Free Speech decision is unconstitutional. Indeed, the Free Speech decision may result in the child pornography exception to the First Amendment being valid in principle but unhelpful to the government in prosecuting many cases involving sexually explicit images of minors. The government has been very successful in prosecuting child pornography cases after the Free Speech decision. If, however, the government is eventually unable to meet its burden of proving that images depict actual children because of the existence of virtual child pornography, and is forced to prosecute child pornography cases under obscenity statutes instead, it will undoubtedly have to expend more resources prosecuting cases and will obtain fewer convictions.
Keywords: child pornography, First Amendment, obscenity, constitutional law, criminal law, presumptions, burden of proof
JEL Classification: K10, K14, K19, K30, K39, K40, K41, K42, K49
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